Opinion No. 1384
ower of commonwealth to control immigration into new guinea: powers conferred by league of nations mandate: application of immigration restriction act
MANDATE FOR THE ADMINISTRATION OF THE GERMAN POSSESSIONS IN THE PACIFIC OCEAN SITUATED SOUTH OF THE EQUATOR OTHER THAN GERMAN SAMOA AND NAURU, CONFERRED UPON HIS BRITANNIC MAJESTY FOR AND ON BEHALF OF THE COMMONWEALTH OF AUSTRALIA, CONFIRMED AND DEFINED BY THE COUNCIL OF THE LEAGUE OF NATIONS done at Geneva on 17 December 1920  ATS 2 arts 2, 3, 5: Laws Repeal and Adopting Ordinance 1921 (NG): Immigration RESTRICTION Act 1901
15 April 1926
The Minister for Home and Territories
A question has been raised as to the powers of the Commonwealth to regulate immigration into the Territory of New Guinea. The answer to this question depends upon the terms of the Mandate conferred upon and accepted by His Majesty the King to be exercised on his behalf by the Government of the Commonwealth. (See Recitals of Mandate.)
By the Mandate, the Council of the League of the Nations, in accordance with article 32 of the Covenant, explicitly defined the degree of authority, control and administration to be exercised by Australia as Mandatory of the Territory.
The Mandate contains (inter alia) the following provisions:
Article 2. The Mandatory shall have full power of administration and legislation over the territory subject to the present Mandate as an integral portion of the Commonwealth of Australia, and may apply the laws of the Commonwealth of Australia to the territory, subject to such local modifications as circumstances may require.
Article 5. Subject to the provisions of any local law for the maintenance of public order and public morals, the Mandatory shall ensure in the territory freedom of conscience and the free exercise of all forms of worship, and shall allow all missionaries, nationals of any State member of the League of Nations, to enter into, travel and reside in the territory for the purpose of prosecuting their calling.
Conformably with article 2, quoted above, the Commonwealth, by the Laws Repeal and Adopting Ordinance 1921 of the Territory, provided that among the laws of the Commonwealth which were to apply to the Territory was the Immigration Restriction Act 1901–1920 which deals with immigration into Australia.
In view of the provisions of article 2, it is clear that the Commonwealth has general power to control immigration into the Mandated Territory.
The provisions of article 5 operate by way of exception from the general powers conferred by article 3. The explicit reference to missionaries limits the power of the Commonwealth with respect to immigration in the case of a specified class of missionaries, namely–such as are nationals of any State member of the League of Nations. Such missionaries cannot be lawfully prevented from entering into, travelling and residing in the Territory for the purpose of prosecuting their calling. This limitation emphasised the right of the Commonwealth to exclude any other persons if thought proper. Even in the case of missionaries of the class mentioned, if they cease to prosecute their calling, the Government could require them to leave the Territory.
It is clear, in my opinion, that the Commonwealth has acted within the powers conferred by the Mandate in applying and administering the Immigration Act as it in fact has done in the Territory of New Guinea.
It may be observed that similar legislation is in force in the other tropical Territory (Papua) of the Commonwealth.
[Vol. 22, p. 542]